Anest v. Scheinberg

Judgment, Supreme Court, New York County (Alice Schlesinger, J., and a jury), entered March 3, 1995, in favor of defendant dismissing the complaint, and order, same court and Justice, entered January 23, 1996, which denied plaintiffs’ motion to vacate the above judgment upon the ground of newly discovered evidence, unanimously affirmed, without costs. A new trial is not warranted on the ground that defense counsel’s summation was inflammatory, plaintiffs never having objected to any portion of the summation on that ground (Laniado v New York Hosp., 168 AD2d 341). In any event, the 257 summation was well within the bounds of proper rhetorical comment. Nor is a new trial warranted on the basis of the purported newly discovered evidence consisting of off-the-record statements made by one of defendant’s experts years after the trial during a chance encounter with the injured plaintiff. The statements, which were not materially different from the expert’s testimony at trial and which would not likely have altered the result at trial, at best served to undermine the credibility of an adverse witness, an insufficient basis for a new trial (Teichner v W & J Holsteins, 161 AD2d 454). Plaintiffs’ remaining arguments are without merit. Concur—Murphy, P. J., Ross, Tom, Mazzarelli and Andrias, JJ.